Chapter 5 Conclusions
We start this chapter by setting out the conclusions that we draw from this study that bear most directly on the narrow task of producing advice on the four offences. We then move to consider some of those findings where responsiveness to public opinion would entail legislative change. Then we consider mitigating and aggravating factors.
Sentencing the four offences
Our survey suggests that there is quite a high level of tolerance for current practice – or, in the case of the new offences, for the SAP draft guidance. For ‘dangerous’, ‘careless’, ‘uninsured’ and ‘unlicensed’, 75%, 66%, 64% and 56% respectively would find what is proposed in the guidance acceptable. It is obviously a matter of judgement to decide how much of a gap between opinion and practice is acceptable. Nevertheless, having over half the public on your side is a comfortable starting point. This raises the question whether sentencing for these offences is at a point where getting tougher is a ‘zero sum game’; it seems possible that imposing tougher sentences on the ‘dangerous’ and ‘careless’ offences might win the support of the tough-minded – but lose that of more liberally minded people.
In relation to ‘careless-drunk’, both the survey respondents and the focus group
participants rated the severity of this offence in broadly the same way as the ‘dangerous’ offence. Their sentences in the ’careless-drunk’ vignette were also similar to those for the ‘dangerous’ case. They saw the culpability of the offender who intentionally drove whilst drunk and then drove carelessly as equivalent to that of the driver in the
‘dangerous’ case who made a more serious and reckless misjudgement whilst sober.
Greater responsiveness to public opinion?
The position in relation to the ‘disqualified’ offence is both starker and more complicated. It is starker because our findings are unequivocal that people rate the ‘disqualified’ offence as a more serious offence than ‘careless’ driving. The consistency and intensity of public views on this point cannot be doubted. The position is more complicated,
because the decision was made by Parliament to treat this offence as less serious that the ‘careless’ one, with a maximum sentence of two rather than five years.
In our view the Panel’s advice on the sentencing of the ‘disqualified’ offence represents an anomaly – albeit one which flows inevitably from the maximum set by Parliament for for this offence26. We have some sympathy with the widely held view that that causing death as a result of ignoring a driving ban is more culpable that doing so through a momentary lapse of attention.27
Aggravation and mitigation
The findings on aggravation and mitigation are in very broad terms consistent with current practice, but there are some consistent areas of departure. We saw in Chapter 4 that people tend to place less store on mitigating factors than on aggravating ones. This suggests that people take for granted that defendants typically express remorse, help their victims, co-operate with the police and so on. The reality can often be otherwise, as anyone who has ever observed courts in session will know. Perhaps the value of the findings here lies less in their potential for fine-tuning the Panel’s guidance and more in the way that they direct attention to the justification of mitigating factors. If, for example, suffering serious injury is to count as a mitigating factor, the rationale for this needs to be spelt out.
Focus groups versus sample surveys
We have discussed some inconsistencies between the survey and the focus groups. In drawing up our proposals for this research, our working hypothesis was that in the course of in-depth discussion, focus group participants would appreciate the subtleties of
With a statutory maximum penalty of only two years it is not surprising that the Panel proposal for this offence is a community penalty.
To a degree the public’s reaction to the disqualified driver may reflect an inaccurate image that offenders convicted of this offence will have long histories of driving related offences. The findings on seriousness ratings suggest that they simply thought the ‘disqualified’ offence more serious. On the other hand, it may reflect the public’s view that causing death through a momentary loss of attention is a less serious offence than causing the death of another person while driving despite the state having clearly withdrawn the offender’s privilege to drive. The seriousness rating data from the present survey support the latter interpretation.
sentencing according to culpability or to harm. We expected them to start off tough, and to end up expressing more moderate views. As we have discussed, this occasionally happened, but more often their final position was rather tougher than the supposedly ‘top-of-head’ views expressed in the survey. Which set of findings provides the better guide to opinion? All that we can safely conclude here is that people express different preferences in different social settings. Our suspicion is that the focus group dynamic rendered the stark loss of life in the scenarios more salient and downplayed the limited culpability of some of the offenders.
Whatever the case, it was clear that focus group participants largely appreciated the complexity and challenging nature of sentencing. Many came to appreciate the inevitably subjective nature of the sentencing process, and the lack of simple ‘right’ or ‘wrong’ answers. This also led a number of participants to comment that the focus group exercise made them realise it’s difficult to be judge:
I’m glad I’m not a judge!
I’m starting to feel sorry for judges!
It’s very interesting. Must be confusing for judges.
In other words the focus group participants ended up making judgements that were both thoughtful and tough.